January 24, 2014

January 24, 2014

The trinity of teachers’ rights in California – tenure, seniority and due process in dismissals – will be under attack next week in a trial in Los Angeles with statewide impact and national interest.

In Vergara v. California, a nonprofit organization, Students Matter, is suing the state to overturn five statutes in the Education Code on behalf of Beatriz Vergara, a Los Angeles Unified student who was 13 when the lawsuit was filed in 2012, and eight more students in five districts. The laws grant probationary teachers the right to obtain tenure, or permanent status, after two years on the job, require layoffs to be based primarily on seniority and lay out a dismissal process with complex due process procedures that the Legislature has tried, but failed, to amend for two years.

The California Teachers Association and the California Federation of Teachers, which the court has permitted to join the defense, view the lawsuit as an attack on teachers’ fundamental workplace protections. Their attorneys say that Students Matter lacks the evidence to justify overturning the laws as unconstitutional. Students Matter asserts that the laws together perpetuate a system that leads to hiring “grossly ineffective teachers” and protecting them from dismissal once they are in the classroom, to children’s detriment.

Students Matter was founded by David Welch, a Silicon Valley entrepreneur who has hired a high-profile team of lawyers led by Theodore Olson and Theodore Boutrous of the law firm Gibson, Dunn & Crutcher. Olson, a former U.S. solicitor general, also was on the team that overturned Proposition 8, which banned same-sex marriages in California.

The trial by Superior Court Judge Rolf Treu is expected to run at least a month, perhaps much longer, in Superior Court in Los Angeles, but will likely end up before the state Supreme Court – a process that could take years. Meanwhile, a consultant for Sacramento-based Students First, a different organization created by former Washington, D.C., schools chancellor Michelle Rhee, wants to place some of the same issues before voters this November. The proposed ballot measure would abolish teacher tenure and rewrite the teacher evaluation law. Another proposed ballot measure, sponsored by Sacramento-based nonprofit EdVoice, would make it easier and less costly to fire teachers accused of egregious misconduct.

Vergara v. California asserts that the “outdated” tenure, dismissal and layoff statutes violate children’s fundamental right to an equal education under the state Constitution. The laws disproportionately affect minority and low-income schools, the lawsuit asserts, because they have a disproportionately large share of ineffective teachers. “Thus, the laws at issue perpetrate and widen the very achievement gap that education is supposed to eliminate,” it says.

Precedent for constitutional claim

Other, more narrowly constructed, fact-based lawsuits have had success making the same basic constitutional argument. In 2011, Los Angeles Unified reached a settlement shielding 45 schools from layoffs based on seniority, after Public Counsel and the ACLU of Southern California persuaded a Superior Court judge that the layoff law resulted in disproportionate staff turnover and hiring substitute teachers in three low-performing middle schools. ** EdVoice cited the right to education equality in its lawsuit that led a Superior Court judge in 2012 to order Los Angeles Unified to incorporate test scores in teacher evaluations, as required by a provision of the Stull Act, the teacher evaluation law passed in 1971 that districts often have ignored. And the right to educational equality was at the heart of arguments of the Williams class-action lawsuit, filed in 2000, that led the state to guarantee credentialed teachers, sufficient materials and clean facilities in low-performing schools.

But Vergara is the most sweeping and broad effort to overturn the teacher employment laws. And that has some civil rights lawyers privately worrying that such a big-stakes approach bears big risks, too, and could create harmful case law if the state Supreme Court rejects the constitutional argument.

Vergara will ultimately be decided on the strength of the evidence. Students Matter must make the case that the laws – and not a sloppy administration of them – create huge burdens preventing districts from weeding out ineffective teachers, and that there is a strong connection between the poor quality of teachers and “a grossly substandard education” that vulnerable children are getting.

“The system is dysfunctional and arbitrary due to these outdated laws that handcuff school administrators from operating in a fashion that protects children and their rights to equality of education,” plaintiffs’ attorney Boutrous said in a teleconference Wednesday.

California is one of a handful of states that still grant tenure in two years or less. Most states have moved to a minimum of three years, and a few have eliminated tenure altogether. During their two-year probationary period, California teachers can be dismissed at any point for any reason. However, because they must be notified by March of their second year whether they will get permanent status, the evaluation period ends up being 18 months or less. “In many instances the result is people slip through the cracks,” said Marcellus McRae, another attorney on the case, and administrators don’t have the time to adequately determine whether the teachers will be effective.

With tenure comes due-process rights, making it expensive and difficult to dismiss teachers “that the state defendants and the teachers’ union and everyone would agree are grossly ineffective and should not be in the system,” Boutrous said. If they aren’t left in place in one classroom, they are transferred “from school to school within the public school system, a phenomenon sometimes referred to as the ‘dance of the lemons,’” the suit says.

Over the past two years, the Democrat-controlled Legislature has struggled without success to reach a compromise between the teachers unions and school boards and administrators on how to pare down the dismissal law. The unions agreed to speed up the dismissal process but not relinquish the right to a hearing by an independent panel led by an administrative law judge. And unions have faulted administrators, not the dismissal laws, for poorly documenting problems in the classroom.

Seniority also protects ineffective teachers during layoffs, according to the suit, which also is challenging what it calls the “nonsensical” Last In First Out, or LIFO, statute. As a result, “You have someone who was voted Teacher of the Year one day and then a couple of days later is laid off because she’s junior compared to other people,” Boutrous said. A bill last year, Senate Bill 453, sponsored by Senate Republican Leader Bob Huff, R-Diamond Bar, that would have eliminated layoffs by LIFO failed to get out of the Senate Education Committee.

First up: John Deasy

Both sides are prepared to call dozens of witnesses, starting with Los Angeles Unified Superintendent John Deasy, the plaintiffs’ first witness on the first day of trial on Monday. Deasy has repeatedly called for rewriting the laws in question. Students Matter also plans to call on Hoover Institution economist Eric Hanushek, who has quantified the harmful effects of bad teachers on student achievement, and Arun Ramanathan, executive director of the The Education Trust-West, a non-profit organization that has supported legislation and lawsuits aimed at ensuring that low income students get high quality teachers. Superintendent of Public Instruction Tom Torlakson, State Board of Education President Michael Kirst and Stanford School of Education Professor Linda Darling-Hammond are also on the potential witness lists.

But Emma Leheny, chief counsel for the California Teachers Association, predicted that Students Matter would fail to prove the “sweeping nature of its abstract claims.” Based on what the plaintiffs have presented in the pre-trial discovery process, “the evidence is scant” to meet a very high burden, she said.

CTA plans to present their own experts who will state that other factors, such as poverty and a lack of resources, not the statutes under attack, are the primary cause of student underachievement. CTA also will call to the stand teachers singled out in depositions as ineffective, Leheny said, and principals and administrators who will testify that the laws can be implemented efficiently.

Leheny criticized the effort “to legislate from the bench and the attempt to remake entire swaths of laws that have been in place for decades.”

The CTA has characterized the lawsuit as an effort to undermine job protections that benefit the education system and that, if successful, it “would remove all checks on — to borrow the plaintiffs’ language — ‘grossly ineffective’ administration.”

Students Matter responds that a favorable ruling would not reduce teachers’ protections under state and federal law from discrimination and wrongful dismissals. Instead, it would “elevate the teaching profession by creating meaningful career ladders and opportunities for leadership.”

** A Court of Appeals in 2012 overturned the settlement between the district and the plaintiffs because the district hadn’t also sought the approval of United Teachers Los Angeles. The status of the deal remains unresolved, although there is no longer any urgency since Los Angeles Unified is now hiring, not laying off teachers.

Comments Policy

Sergio Cuellar4 years ago4 years ago

I may be wrong but isn’t Students Matter somehow connected to michelle rhee and Students first?

Mark4 years ago4 years ago

The powerful CTA, California Teachers Union, used their enormous funds to lobby the state legislature to pass a law whereby any teacher can throw any student out of their class by simply claiming, with no proof required, that they are "afraid" of the student. I had one of my community college teachers do this to me in retaliation after I reported her to the department chair for grand theft from the school. Turned out the … Read More

The powerful CTA, California Teachers Union, used their enormous funds to lobby the state legislature to pass a law whereby any teacher can throw any student out of their class by simply claiming, with no proof required, that they are “afraid” of the student. I had one of my community college teachers do this to me in retaliation after I reported her to the department chair for grand theft from the school. Turned out the department chair was an accomplice to this conspiracy to commit thus theft and helped other teachers steal too. Bet you could have guessed the college is CCSF. Now the dean of liberal arts, who libeled me rather than investigate, no longer is in administration, so at least some of the chickens have come home to roost, but the students pay the price. One of the things the accreditation board cited the college for was the department chairs, teachers elected by the other teachers, ignoring instructions to cancel the classes that have low enrollment, less than 15 students, to save money. Instead, they cancelled classes based on seniority of the teacher, to the detriment if the students. The accreditation board wanted to get rid of these overpaid department chairs. Based on my witnessing in several departments of corruption and fact that they seemed to do little I agree. The teachers union sued the accreditation board and dug for dirt on the members. Now who’s wasting taxpayer money?

Mark4 years ago4 years ago

Forgot to point out the hypocrisy of the teacher’s claiming they might be denied due process, not true, when they got a law passed to deny due process to the students.

el4 years ago4 years ago

I’m sorry you had a bad experience. I think it’s safe to say that CCSF is not going to handle this the same as a K-12 school, which has an obligation to educate every student with an appropriate curriculum and can only completely remove a student from school with an expulsion hearing.

CarolineSF4 years ago4 years ago

D A O'Dragled4 years ago4 years ago

This is REALLY going to be interesting. To be sure, there are some in the classroom who are marginal enough that replacement would be a good option. But the impetus behind this movement appears to be based on the idea that incompetent teachers are the rule rather than a very miniscule exception. A collective anger is too frequently focused on a broad-brush indictment of the dedicated folks who tirelessly put in countless hours training, planning, … Read More

This is REALLY going to be interesting. To be sure, there are some in the classroom who are marginal enough that replacement would be a good option. But the impetus behind this movement appears to be based on the idea that incompetent teachers are the rule rather than a very miniscule exception. A collective anger is too frequently focused on a broad-brush indictment of the dedicated folks who tirelessly put in countless hours training, planning, correcting, evaluating and working toward a better outcome for kids. If we valued education, honored educators and decided that we should pay for that which we expect from the system, I believe this issue would never have made it to court. Just my 2 cents worth…

Salmacis4 years ago4 years ago

Different city, different topic, different day, yet it’s the same pernicious old argument : rich people hate working people having (the most meager of) basic rights.

Mark4 years ago4 years ago

Most meager of basic rights? Any California teacher can throw any student out of their class by simply claiming, with no proof required, AKA Due Process, that they are “afraid” of the student. How is that fair to the student?

el4 years ago4 years ago

In a functional school system, there will be no layoffs except in the case of declining enrollment, and thus the whole concern about seniority is relatively moot.

Also, the existence or nonexistence of layoffs in no way precludes the process to remove a staff member for cause.

Paul4 years ago4 years ago

Very true, el, except that, state law on layoffs notwithstanding, many local collective bargaining agreements specify seniority as the (or as one) criterion for: teacher assignment within the current school; choice of school and assignment in an involuntary transfer, and choice of school and assignment after an involuntary transfer.
As I wrote in a related post, 'Lawyers Matter' is attacking seniority because the outfit is hostile to teachers, not because it has any interest in finding … Read More

Very true, el, except that, state law on layoffs notwithstanding, many local collective bargaining agreements specify seniority as the (or as one) criterion for: teacher assignment within the current school; choice of school and assignment in an involuntary transfer, and choice of school and assignment after an involuntary transfer.

As I wrote in a related post, ‘Lawyers Matter’ is attacking seniority because the outfit is hostile to teachers, not because it has any interest in finding a more effective or more equitable alternative.

We should continue advocating stable funding, so that layoffs really do become an exception rather than an annual ritual, but we shouldn’t lose sight of the problem of “cherry-picking”, which puts the least-experienced teachers in the toughest schools and classrooms.

Paul4 years ago4 years ago

* “… choice of school and assignment in an voluntary transfer, and choice of school and assignment after an INvoluntary transfer.”

Manuel4 years ago4 years ago

Using the logic of the “Lawyers Matter” sponsor, if a position is tough to staff, then there should be a monetary incentive to those taking that position, no? Let the Invisible Hand of the Market decide 😉

el4 years ago4 years ago

Since I come from a smaller district, this isn’t really a factor for us and I don’t think of it, so I appreciate the perspective.

Again though, this comes from the local contract rather than What Must Be By State Law.

Manuel4 years ago4 years ago

I remember reading about this "effort" when it was first reported. The information then available indicated that this was a one-man, albeit a very rich man, crusade.
Now I've skimmed over the filings and all I can find is allegations without much of evidence backing them. Worse, there is no offering of proof that the teachers claimed to have been ineffective are indeed that.
So I don't get it. Isn't a lawsuit like this supposed to have … Read More

I remember reading about this “effort” when it was first reported. The information then available indicated that this was a one-man, albeit a very rich man, crusade.

Now I’ve skimmed over the filings and all I can find is allegations without much of evidence backing them. Worse, there is no offering of proof that the teachers claimed to have been ineffective are indeed that.

So I don’t get it. Isn’t a lawsuit like this supposed to have some meat in it? Have the articles in the LA Weekly become so authoritative that they are now cited as irrefutable proof that there exist bad teachers out there who should be fired without any recourse to due process?

And now we are going to get them as a proposition? Good grief…

I’d be curious to know what respectable neutral lawyers have to say on the legal merits of this lawsuit and would hope that John can get their opinions. Geting quotes from the Usual Suspects is not going to be enough, I am afraid.

FWIW, back in the day, the issue of LIFO was not even “in the radar.” If we get the full funding promised by LCFF, it should not even be an issue. So we are back to the fundamental question: why don’t school administrators invest on the personnel necessary to provide adequate supervision to remove bad teachers from classrooms? My guess is that it isn’t a priority for them. Why do I say this? Because I know of many cases where teachers have been removed. But I also know that some have remained because the principal knows that a better replacement cannot be gotten. This lawsuit does not address that at all. This lawsuit just seeks to upset the apple cart.

navigio4 years ago4 years ago

"why don’t school administrators invest on the personnel necessary to provide adequate supervision to remove bad teachers from classrooms? "
what i love about this lawsuit is I expect it will require that that question will have to be answered. And in court.
Part of me also wants to believe the judge has let this proceed not because the case has merits, but because it will necessitate providing answers to questions we have thus far refused to … Read More

“why don’t school administrators invest on the personnel necessary to provide adequate supervision to remove bad teachers from classrooms? ”

what i love about this lawsuit is I expect it will require that that question will have to be answered. And in court.

Part of me also wants to believe the judge has let this proceed not because the case has merits, but because it will necessitate providing answers to questions we have thus far refused to ask. Here’s to hoping..

Manuel4 years ago4 years ago

navigio, I share those hopes.

Perhaps the right questions will be asked of the witness and will bring much light unto this.

And, yes, it is time that, once and for all, this is put to a test. What would be nice is if court costs are paid by the plaintiffs for filing a frivolous lawsuit.

navigio4 years ago4 years ago

funny you should say that. I was (disgutedly) struck by the fact that the last request in the lawsuit was for awarding of attorney fees. Guess kids dont need that money after all, eh?

Manuel4 years ago4 years ago

What? Really? These people have no shame. Now they want the taxpayers to fund their quests? Unbelievable…

I do hope this request comes to bite them back.

Mark4 years ago4 years ago

Are you a teacher? Seems like you are. I don’t see where anyone commenting here declares them self a teacher or their spouse. Kind if significant don’t you think? No teacher is going to admit that they don’t want to risk being able to be fired even if such ruling would be best for students, especially poor students.

el4 years ago4 years ago

I think you're addressing Manuel here. He posts comments frequently, as do navigio, CarolineSF, and I. None of us are teachers or have ever been. Paul is a teacher.
We seem to have quite a mix of experiences and posters here. I know we have parents, teachers, administrators, and board members as well as various state education experts who have contributed from time to time. And we have a breadth of experience across urban and rural, … Read More

I think you’re addressing Manuel here. He posts comments frequently, as do navigio, CarolineSF, and I. None of us are teachers or have ever been. Paul is a teacher.

We seem to have quite a mix of experiences and posters here. I know we have parents, teachers, administrators, and board members as well as various state education experts who have contributed from time to time. And we have a breadth of experience across urban and rural, special ed, adult school, gifted, etc. It’s really quite a good place to find out what other parts of the education elephant look like.

I think you’ll be more successful arguing with facts and questions than by dismissing someone because of their particular role.

John Thompson4 years ago4 years ago

Excellent article. It wouldn’t be that hard to mend not end seniority if reformers understood the value of it, as well as the problems. And, previously the court ordered systems to obey the law, not destroy it.